Silicosis case poised to rewrite law
Whatever the outcome, the historic class-action suit brought by gravely ill former gold miners and their families will test, and possibly reset, the boundaries of the country’s court system
Should the case be certified as a class action, and should it go to trial, the total number of plaintiffs would fill FNB stadium, with about 6000 more between the seats, or standing.
Two more FNB stadiums could be filled by the estimated thousands more who are sick and dying of silicosis and tuberculosis, which they contracted while working underground in the gold mines of the Free State and the Witswatersrand since 1965.
Silicosis is a progressive, painful, irreversible lung disease, which can co-occur with tuberculosis.
This week, the miners’ applicants have asked the high court in Johannesburg to certify a classaction suit that would allow them to sue more than 30 gold mines for damages.
It is a lawsuit of unprecedented proportions. The numbers are staggering and the damages claims could enter the record books. Already, settlement talks are under way, although this only came to the attention of lawyers this week.
A likely outcome will be a fund established for the miners and their dependants.
The precedent set will be trenchant. If the gold industry is quivering at the thought of losing this case, the diamond, asbestos and coal industries should be equally nervous.
“It’s finally happening,” said a junior counsel to Richard Spoor, one of the lawyers who has doggedly pursued this case for years, at the start of the hearing.
Several benches behind the up to 60 lawyers in the court, the country’s crusading human rights advocate, George Bizos SC, sat down to observe the proceedings.
The following day former Cosatu general secretary Zwelinzima Vavi sat in the public gallery, too; a coterie of journalists followed him, hankering after a sexy quote.
To be fair, perhaps they were intimidated by the sheer size of the case. The voluminous court record alone is enough to make even wellseasoned lawyers wince.
There are nine counsel for the applicants. This is the result of three cases merging into one, each initially brought by three different lawyers: Spoor, Charles Abrahams and the Legal Resources Centre (LRC). In addition to the nine additional counsel who appear for the miners in court, they are up against more than 20 advocates representing the mining companies.
A ballpark figure for the total legal fees charged on day one of the hearing this week was probably about R15-million, according to one lawyer.
Counsel for the miners said they had reduced their fees significantly.
On the sidelines of the court case this week, Abrahams told the Mail & Guardian that various pieces of research suggest there could be about 300 000 former gold mineworkers who have silicosis.
Add to that the number who have tuberculosis and the number could rise to 500 000.
But in reality, the plaintiffs who actually end up litigating would probably reach about 100 000. That is a safe estimate.
According to Spoor’s founding affidavit, by 2012 he and his team of experts had taken instructions from 17 000 former miners and the with the issues that are common to all the plaintiffs and stage two would deal with any outstanding individual issues that the plaintiffs want the court to address.
Counsel for the miners, Wim Trengove SC, said it would be up to the trial court to decide how the case would be heard.
But mining companies have said that the class-action suit, because of its size, is completely unmanageable for any court to deal with.
Anglo American argues in court papers that the accusation of systemic neglect across the gold industry is generalised and does not take into account the “very complex” activity that is gold mining.
Anglo says it is not appropriate for the applicants to take a “one size fits all” approach to meet the requirements of commonality — something the applicants need to prove to make their case for a class-action suit.
Gold Fields, in papers before the court, objected to the addition of a tuberculosis lawsuit, saying: “The fundamental concern remains that class certification of a tuberculosis class implies what would be akin to a commission of enquiry into the causes of tuberculosis among mineworkers in South Africa and neighbouring states, now over a period of 42 years.
This is, by definition, completely unmanageable.”
But Trengove said the question was not whether the case should be litigated, but how it should be done.
He said the former miners had a constitutional right to the judicial determination of their claims, and the only practical way to do this was a class action. The alternative is 100 000 individual cases.
Trengove charged that the mines had a “powerful commercial incentive” to oppose the application. All have opposed it except Randgold, which said it would abide by the court’s decision.
He said the mines did not fail to protect miners from excessive levels of dust out of neglect, but because paying out statutorily determined compensation was cheaper than implementing safety measures.
All the mines had known what was needed to protect the miners, said another counsel for the miners, advo-